Color

Color

The appearance or semblance of a thing, as distinguished from the thing itself.

The thing to which the term color is applied does not necessarily have to possess the character imputed to it. A person who holds land under color of title does not have actual title to it.

COLOR, pleading. It is of two kinds, namely, express color, and implied
color.
2. Express color. This is defined to be a feigned matter, pleaded by
the defendant, in an action of trespass, from which the plaintiff seems to
have a good cause of action, whereas he has in truth only an appearance or
color of cause. The practice of giving express color in pleas, obtained in
the mixed actions of assize, the writ of entry in the nature of assize, as
well as in the personal action of trespass. Steph. on Plead. 230; Bac. Ab.
Trespass, 14.
3. It is a general rule in pleading that no man shall be allowed to
plead specially such plea as amounts to the general issue, or a total denial
of the charges contained in the declaration, and must in such cases plead
the general issue in terms, by which the whole question is referred to the
jury; yet, if the defendant in an action of trespass, be desirous to refer
the validity of his title to the court, rather than to the jury; he may in
his plea stated his title specially, by expressly giving color of title to
the plaintiff, or supposing him to have an appearance of title, had indeed
in point of law, but of which the jury are not competent judges. 3 Bl. Com.
309. Suppose, for example, that the plaintiff wag in wrongful possession of
the close, without any further appearance of title than the possession
itself, at the time of the trespass alleged, and that the defendants,
entered upon him in assertion of their title: but being unable to set forth
this title in the pleading, in consequence of the objection that would arise
for want of color, are driven to plead the general issue of not guilty. By
this plea an issue is produced whether the defendants are-guilty or not of
the trespass; but upon the trial of the issue, it will be found that the
question turns entirely upon a construction of law. The defendants say they
are not guilty of the trespasses, because they are not guilty of breaking
the close of the plaintiff, as alleged in the declaration; and that they are
not guilty of breaking the close of the plaintiff, because they themselves
had the property in that close; and their title is. this, that the father of
one of the defendants being seised of the close in fee, gave it in tail to
his eldest son, remainder in tail to one of the defendants; the eldest son
was disseised, but made continual claim till the death of the disseisor;
after whose death, the descent being cast upon the heir, the disseisee
entered upon the heir, and afterwards died, when the remainder took effect
in the said defendant who demised to the other defendant. Now, this title
involves a legal question; namely, whether continual claim will no preserve
the right of entry in the disseisee, notwithstanding a descent cast on the
heir of the disseisor. (See as to this point, Continual Claim.) The issue
however is merely not guilty, and this is triable by jury; and the effect,
therefore, would be, that a jury would have to decide this question of law,
subject to the direction upon it, which they would receive from the court.
But, let it be supposed that the defendants, in a view to the more
satisfactory decision of the question, wish to bring it under the
consideration of the court in bank, rather than have it referred to a jury.
If they have any means of setting forth their title specially in the plea,
the object will be attained; for then the plaintiff, if disposed to question
the sufficiently of the title, may demur to the plea, and thus refer the
question to the decision of the judges. But such plea if pleaded simply,
according to the state of the fact, would be informal for want of color; and
hence arises a difficulty.
4. The pleaders of former days, contrived to overcome this difficulty
in the following singular manner. In such case as that supposed, the plea
wanting implied color, they gave in lieu of it an express one, by inserting
a fictitious allegation of some colorable title in the plaintiff, which
they, at the same time avoided by the preferable title of the defendant. S
Step. Pl. 225 Brown's Entr. 343, for a form of the plea. Plowd. Rep. 22 b.
5. Formerly various suggestions of apparent right, might be adopted
according to the fancy of the pleader; and though the same latitude is,
perhaps, still available, yet, in practice, it is unusual to resort to any
except certain known fictions, which long usage has applied to the
particular case for example, in trespass to land, the color universally
given is that of a defective charter of the demise. See, in general, 2
Saund. 410; 10 Co. 88; Cro. Eliz. 76; 1 East, 215; Doct. Pl. 17; Doct. &
Stud. lib. 2, c. 53; Bac. Abr. Pleas, I 8; Trespass, I 4; 1 Chit. Pl. 500
Steph. on Pl. 220.
6. Implied color. That in pleading which admits by implication, an
apparent right in the opposite party, and avoids it by pleading some new
matter by which that apparent right is defeated. Steph. Pl. 225.
7. It is a rule that every pleading by way of confession and avoidance,
must give color; that is, it must admit an apparent right in the opposite
party, and rely, therefore, on some new matter by which that apparent right
is defeated. For example, where the defendant pleads a release to an action
for breach of covenant, the tendency of the plea is to admit an apparent
right in the plaintiff, namely, that the defendant did, as alleged in the
declaration, execute the deed and break the covenant therein contained, and
would therefore, prima facie, be liable on that ground; but shows new matter
not before disclosed, by which that apparent right is done away, namely,
that the plaintiff executed to him a release. Again, if the plaintiff reply
that Such release was obtained by duress, in his, replication, he impliedly
admits that the defendant has, prima facie, a good defence, namely, that
such release was executed as alleged in the plea; and that the defendant
therefore would be discharged; but relies on new matter by which the plea is
avoided, namely, that the release was obtained by duress. The plea, in this
case, therefore, gives color to the declaration, and the replication, to the
plea. But let it be supposed that the plaintiff has replied, that the
release was executed by him, but to another person, and not to the
defendant; this would be an informal replication wanting color; because, if
the release were not to the defendant there would not exist even an apparent
defence, requiring the allegation of new matter to avoid it, and the plea
might be sufficiently answered by a traverse, denying that the deed stated
in the plea is the deed of the plaintiff. See Steph. Pl. 220; 1 Chit. Pl.
498; Lawes, Civ. Pl. 126; Arch. Pl. 211; Doct. Pl. 17; 4 Vin. Abr. 552; Bac.
Abr. Pleas, &e. I 8; Com. Dig. Pleader, 3 M 40, 3-M 41. See an example of
giving color in pleading in the Roman law, Inst. lib. 4, tit 14, De
replicantionibus.

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